Carbo v. United States

• Decision Date: 03 March 1961
• Docket Number: 17283.,No. 17282,17282
• Citation: 288 F.2d 282
• Parties: Paul John CARBO, Frank Palermo, Joseph Sica and Louis Tom Dragna, Appellants, v. UNITED STATES of America, Appellee. Paul John CARBO, Frank Palermo, Joseph Sica and Louis Tom Dragna, Appellants, v. R. W. WARE, United States Marshal, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F.2d 282 (1961)

Paul John CARBO, Frank Palermo, Joseph Sica and Louis Tom Dragna, Appellants, v. UNITED STATES of America, Appellee.

Paul John CARBO, Frank Palermo, Joseph Sica and Louis Tom Dragna, Appellants, v. R. W. WARE, United States Marshal, Appellee.

Nos. 17282, 17283.

United States Court of Appeals Ninth Circuit.

March 3, 1961.

Wm. B. Beirne and A. L. Wirin, Los Angeles, Cal. (Fred Okrand, Los Angeles, Cal., of counsel), for appellant Carbo.

William Strong, Beverly Hills, Cal., for appellant Palermo.

Russell E. Parsons, and Albert Jack Chotiner, Los Angeles, Cal., for appellant Sica.

Max Solomon, and John J. Bradley, Los Angeles, Cal., for appellant Dragna.

Laughlin E. Waters, U. S. Atty., Alvin H. Goldstein, Jr., Sp. Asst. Atty. Gen., Charles A. Lynberg and Robert E. Hinerfeld, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

These appeals, consolidated for purposes of hearing and disposition, are from district court orders exonerating appellants' bail bonds and remanding appellants to the custody of the United States Marshal, denying motions to vacate that order, denying motions to reset bail pending trial, and denying an application for a writ of habeas corpus.

Motions were also made in this court for bail pending appeal. At the hearing on these motions all parties agreed to consider the appeals as submitted on the merits. The motions for bail pending appeal are therefore deemed merged in the appeals on the merits and will not be separately considered.

Under the authority of Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3, we have jurisdiction of the appeal from the orders exonerating the bonds and remanding appellants to custody, denying the motions to vacate, and denying the motions to reset bail pending trial.

The motions which led to the entry of these orders and the right to appeal from such orders provide appellants an adequate remedy. The application for a writ of habeas corpus was therefore properly denied as an unnecessary collateral remedy. Stack v. Boyle, supra. The order denying that application is for that reason affirmed. We will concern ourselves below only with the appeal from the other orders which have been described.

The appellants are Paul John Carbo, Frank Palermo, Joseph Sica and Louis Tom Dragna. They are four of the five defendants now on trial in a criminal action in the United States District Court for the Southern District of California, Central Division. Appellants are on trial under a ten-count indictment charging conspiracy, extortion through use of interstate communications, and conspiracy to violate the anti-racketeering act, in violation of 18 U.S. C.A. §§ 371, 875(b) and 1951.

The bail bonds set and posted by the court on the return of the indictment were as follows: Carbo, $100,000; Palermo, $100,000; Sica and Dragna, $25,000 each; and the remaining defendant, Truman Gibson, Jr., not an appellant here, $5,000. The bail of all appellants except Carbo was thereafter reduced to $2,500.

When the trial opened on February 21, 1961, counsel for the Government without prior notice orally moved to exonerate the bail bonds and remand appellants and defendant Gibson to the custody of the United States Marshal. Counsel for the Government stated that the motion was addressed to the court's discretion "in maintaining orderly proceedings and assuring the presence of the defendants during the course of a long trial." It was estimated that the trial would in all probability require six to eight weeks.

In arguing that maintenance of "orderly proceedings" required that appellants be held in custody, counsel for the Government stated that over a two-year period the Government's principal witness had received over a hundred threatening telephone calls. It was represented that the witness had for this reason been forced to have his home telephone removed. Calls then began coming to his place of business, making it necessary for the witness to leave his job. All of these telephone conversations related to the testimony the witness was expected to give at the trial.

Counsel for the Government supplemented this statement with assertions relating to the individual appellants. It was stated that Carbo for a period of thirteen months had avoided arrest on a New York state warrant involving a different offense; that he had a "very serious" criminal record; and that there was a serious question as to $50,000 of the surety on his bail bond.

It was represented that Palermo had resources which enable him to travel about the country; that he is a long-time associate of Carbo; that he has a criminal record, has been a principal figure in a number of investigations, has a "serious stake" in the outcome of the trial, and has been active in the boxing world but is not licensed to participate in boxing.

Counsel for the Government stated that Sica had a criminal record indicating a capacity to do physical violence to those who stand in his way, and was a defendant in a narcotics prosecution in which the principal witness was murdered. No statements were made with particular reference to Dragna. No oral testimony, documentary evidence or affidavits were offered in support of the Government's motion.

Counsel for appellants orally resisted the motion and in the course of doing so denied most of the statements made by Government counsel. The trial judge did not immediately rule on the motion, stating that he desired to "turn this over in my subconscious a bit." The motion was orally granted at the end of the morning session of the first day of trial. In explanation of this action the court stated:

"I have on only one occasion in my career on the bench sequestered defendants during a trial. I have the impression it should be done in this case."

During the afternoon session of the court on the same day counsel for appellants Sica and Dragna and defendant Gibson filed written motions to reset bail. Oral motions to the same effect were made on behalf of Carbo and Palermo. The court granted the motion as to Gibson, resetting his bail at $5,000. As to the four appellants the motion was denied, the court indicating that he believed they were in the throes of an "intangible hysteria which made these defendants not the best possible bail risks during the actual progress of the trial."

Concerning Carbo, the judge expressed additional considerations which led him to revoke the bail of that appellant. One of these was that according to Government counsel Carbo had for a period of months eluded arrest in New York on another charge.

The other such consideration was related to the fact that until the day of the trial Carbo was serving a two-year sentence on misdemeanor convictions in New York City, but was in the actual custody of the United States Marshal in Southern California pursuant to a writ of habeas corpus ad prosequendum. See Carbo v. United States, 9 Cir., 277 F.2d 433, affirmed 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329.

Carbo's counsel thought that the New York sentence was to expire at 12:01 a. m., February 21, 1961, which by coincidence was the night before the instant trial was to begin.¹ Carbo's counsel asked the trial judge in the instant case to release Carbo from custody under the New York sentence at 9:01 p. m., February 20, California time, which would correspond to 12:01 a. m. February 21, New York time. The attorney represented to the court that this would enable Carbo, who had been ill, to obtain a good night's sleep before the instant trial commenced the next morning. The request was denied.

In denying Carbo's motion to reset bail, the trial judge referred to this incident as indicating to him that Carbo may have desired his release for those few hours so that he could abscond.²

Two days later appellants renewed their attempt to be readmitted to bail. They did so by oral motions for reconsideration and by a joint application for writs of habeas corpus. A hearing thereon was held on that day and on the following day during which there was received without objection Federal Bureau of Investigation reports listing the arrests and convictions of the four appellants.

The motions and application were denied, but during the course of the hearing the judge made additional statements of his reasons for remanding appellants. As to the appellants in general, reference was again made to "a little presence of hysteria." Emphasizing the intangible basis of his ruling, the court referred to "the feeling that a judge gets in a situation where the security of the case, the continued presence of the defendants had better be assured by sequestering them." Repeating this observation, the judge said: "Then there is kind of a feeling you get, sort of an osmosis."

These appeals were then taken.

Appellants argue first that the district court did not have constitutional, statutory or inherent power to deny bail before conviction in this non-capital case.

It is stated in the eighth amendment that excessive bail shall not be required. Rule 46(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that a person arrested for an offense not punishable by death "shall be admitted to bail." The purpose of bail is to insure the presence of the defendant pursuant to court order. See rule 46, supra, paragraph (c).

When a criminal trial is in actual progress there must be an accommodation between the right of a defendant to be free on bail and the inherent power of the court to provide for the orderly progress of the trial. Where release on bail poses no substantial threat to the orderly progress of the trial, the imperatives of the Constitution and the rule require that the right to preconviction bail be honored. Indeed, freedom from custody, cherished at any time, has special importance to an individual while he is defending himself in a criminal prosecution. See Stack v. Boyle, supra, 342 U.S. at page...